Opinion: Does the Defamation Bill go far enough?

Libel law is something that the coalition government has committed itself to reforming and Lord Lester says his bill has cross-party support as the public are demanding there should be changes to protect free speech.

The content of the bill, perhaps unsurprisingly, mirrors the make-up of the Libel Working Group, which reported in March 2010. That group contained 17 members, 11 of whom were on the ’defendant’ side in the debate, including representatives from lobbying groups Sense About Science, Index on Censorship and English PEN, in addition to five members of the mass media.

The bill raises concerns that those demanding changes are not in fact the public, but the media and special interest groups. An example of this is in respect
of the much-vaunted allegations of libel tourism. Of the 219 defamation cases issued in the High Court last year, only 34 had a foreign connection. Even Lord Hoffmann, a strong advocate of freedom of speech, thought that libel tourism was more a matter of myth than reality.

Of course everyone supports free speech, but the proposed reforms to the statutory public interest defence and fair comment, which are both codified, give real cause for concern. The public interest defence covers the position where a publisher has got the story wrong and cannot rely on a defence of truth. In the case of Reynolds v Times Newspapers, Lord Nicholls set out a 10-point test, which he considered publishers should satisfy.

The courts have already accepted that these 10 points need not be applied rigidly and that any doubt should be found in favour of the defendant. It is difficult to understand, therefore, how you can further codify what is meant by responsible journalism. The duty on journalists to get their facts correct and publish the truth is significant.

The same approach appears to have been applied to fair comment, which has now been redefined as ’honest opinion’, following the Court of Appeal decision in British Chiropractic Association v Singh. However, the general tenor of the bill appears to be that the Court of Appeal decision did not go far enough and that codification is required.

Unsurprisingly, the multiple publication rule is to be altered with some balancing protection given with respect of the limitation period, and Section 13, Defamation Act 1995 is to be repealed.

The provisions for the trial to be by jury is to be reversed, with trials being without juries, save if the parties require.  This is sensible as more trials, for cost reasons, are being heard by judge alone. Although I think it is important to remember that a jury in a libel action can be of as much benefit to a defendant as to a claimant.The requirement that a claimant has to show substantial harm is again of concern as that which can appear trivial when analysed by lawyers can still be real and significant to the person who has experienced it. Corporate claimants will also have to show financial loss. If introduced, this would make claims for companies difficult to pursue.

When Lord Lester presented his bill at a recent seminar, it was concerning that the two QCs who spoke both raised significant concerns about the bill, its balance and workability. The QC who raised the most concerns was dismissed by Lord Lester as being on the “claimant side” - something that was demonstrably untrue.

This bill is to be open to the scrutiny of a select committee. One can only hope that it is scrutinised by those who understand the importance of free speech, but also responsible journalism and the rights of claimants to protect their reputations against untrue allegations.